Barrera-Magana, Juan Carlos

• Court: Court of Criminal Appeals of Texas
• Decided: June 9, 2021
• Docket: WR-92,099-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,099-01

EX PARTE JUAN CARLOS BARRERA-MAGANA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1338054-A IN THE 338TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of murder and sentenced to life in prison. The First Court of

Appeals affirmed his conviction. Barrera-Magana v. State, No. 01-20-00587-CR (Tex.

App.—Houston [1st Dist.] del. Sep. 10, 2020). Applicant filed this application for a writ of habeas

corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE

CRIM . PROC. art. 11.07.

Applicant contends that appellate counsel told him she would file a petition for discretionary

review in this Court regarding the judgment of the appellate court affirming the conviction, but she

failed to do so, and that appellate counsel failed to timely inform Applicant of his right to file a pro

se petition for discretionary review. Applicant has alleged facts that, if true, might entitle him to 2

relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135

(Tex. Crim. App. 2005). Accordingly, the record should be developed. The trial court is the

appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

The trial court shall order appellate counsel to respond to Applicant’s claims. In developing

the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects

to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and

wants to be represented by counsel, the trial court shall appoint counsel to represent him at the

hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court

shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether appellate

counsel informed Applicant that she would file a petition for discretionary review, but failed to do

so, and failed to timely inform Applicant that he had a right to file a pro se petition for discretionary

review. The trial court shall also determine whether Applicant would have timely filed a petition

for discretionary review but for appellate counsel’s alleged deficient performance. The trial court

may make any other findings and conclusions that it deems appropriate.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: June 9, 2021 Do not publish